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THE FITZ-JOHN PORTER CASE 



SPEECH 



OF 



HOK CHAS. F. MAKDERSON : 

OW NEBRASKA, 



IN THE 



SENATE OF THE UNITED STATES, 



MARCH 13, 1884. 



He who obeys with modesty, appears worthy of some day or other 
being allowed to command."— Cicero, Leg. Ill, 2. 



WASHINGTON 

18 8 4. 






West. Eee. Hiss. Sac, 



I 



., 



SPEECH 

OF 

HON. CHARLES F. MANDERSON. 



The Senate, as in Committee of the Whole, having under consideration the 
bill (H. R. 1015) for the relief of Fitz-John Porter- 
Mr. M ANDERSON said: 

Mr. President: It is not with the expectation that I may be able 
to add anything of value to the already vast accumulation of argument 
brought to bear upon the bill for the relief of Fitz-John Porter that I 
crave the indulgence and attention of the Senate. Gentlemen of distin- 
guished ability occupying places at both ends of the Capitol, lawyers of 
great erudition whose reputation is national, soldiers of distinction whose 
names are ' i as familiar in our mouths as household words, ' ' have spoken 
and written upon the theme until it seems almost worn threadbare. He 
who would glean in a field wherein such expert harvesters have worked 
their sickles of research.and reason must needs be content with slender 
spoil. 

It is not at all surprising that the interest of those who are to vote 
for or against this bill should remain unabated, nor is it astonishing 
that the general public should continue to be interested in the subject- 
matter. Since midsummer of 1862 this contest has continued. From 
the higlmoon of civil strife down through the eventful time to this 
peaceful eventide of national repose, through war and through peace, 
this claimant has urged that he has been most unjustly dealt with, 
and prayed for vindication. If an individual, however humble, was 
to be seen in midchannel battling bravely with combating waves in a 
veritable ' ' struggle for life, ' ' with what deeply felt interest would the 
bystanders watch his efforts, their feeling intensified perhaps by the 
fact that they were powerless to help. Here, in the face of the world, 
for nearly a quarter of a century has progressed a contest where the 
stake was dearer than life — a struggle to vindicate impeached honor, to 
clear smirched loyalty, to brighten tarnished reputation. What wonder 
is it, then, that the interest continues and that even the fledglings of 
the Senate should desire to record the reasons that prompt their votes 
for or against this bill ? 

Let the conclusion of the observer of this contest be what it may, he 
can not but be struck with the persistency of this claimant for relief. 
His motto seems to have been, "Hope against hope, and ask till ye re- 
ceive. ' ' I for one would gladly reward such earnest endeavor. Nothing 



would delight me more than to say to this man pleading for restoration 
of good name and fame, ' ' You have been unj ustly dealt with. The tri- 
bunal that pronounced you guilty of disobedience of the orders of your 
superior, of disloyalty to your chief, was mistaken in its findings of fact. 
Blinded by the passions of the hour, prejudiced by the desire for some 
victim upon whom to rest the stinging blame of defeat to our arms, you 
were sacrificed. The ' sober second thought ' has shown how greatly 
you have been maltreated. Take what of reparation a sorrowful and 
now grateful country can afford to you. Be restored to all rights of 
which you have been deprived. ' ' 

Senators, if I could say this to this claimant after full investigation 
and with determination to do my full duty, without bias or prejudice, I 
would not stop here. I would not be content with the half-way and 
inadequate reparation provided in this bill. No, no ! I would go fur- 
ther in the name of justice and the right and say, ' ' There shall be given 
to you, General Fitz- John Porter, full and abundant righting of all your 
grievous wrongs. Be restored to the position in the Army of the United 
States yours in the natural order of events if this gross injustice had 
not been inflicted upon you. We can not restore to you the years that 
are past, but with a nation's apology to you we order that the only rec- 
ompense within earthly power to bestow, emolument, wealth, shall be 
yours. " I do not understand that the advocates of this bill base the 
argument for its passage upon the proposition that it is in the nature 
of clemency or pardon, but rather on the ground that it is a new find- 
ing of fact upon new trial had, in which the claimant's entire innocence 
of the offenses heretofore charged has been fully established. If this be 
so, why stop with the inadequate and paltry reparation for wrong in- 
flicted provided for by this bill? 

Mr. President, I came to the consideration of this case in a somewhat 
unusual manner. When elected to my seat in this honorable body I 
confess to an almost inexcusable ignorance of the history and merits of 
the Fitz-John Porter case. During those gloomy days in the country's 
history when the court-martial assembled, in the fall and winter of 
1862, and with General Hunter as president, and Generals Hitchcock, 
King, Prentiss, Eicketts, Casey, Garfield, and other distinguished mili- 
tary leaders composing the court, proceeded, under oath and with the 
sanction of the Constitution and laws, to try General Porter for dis- 
obedience of the orders of his superior and for shameful neglect to bring 
the troops under his command into battle, wheA other divisions of the 
Army to which he was attached were engaged, within distance where 
he could do great good, it was not my fortune to be where the news of 
the day was within reach. I was of the Army of the West, far re- 
moved from Washington, and where, by reason of our distance and the 
fact that we had usually sufficient on hand to keep us very busy, we 
knew but little of what was going on in the armies of the East. 

The war over, being engrossed with the duties and cares of civil life, 
the facts pertaining to the Porter case continued unknown to me. At 
last I entered upon its investigation from the standpoint of the accused. 
The first article presented to me and carefully read was the paper of 
General Grant, ' 'An undeserved stigma, ' ' published in the North Amer- 
ican Review. This was followed by the letters of Generals Grant, Terry, 
and others. Then the defensive pamphlet of Mr. Lord, and the report 
of the maj ority of the Committee on Military Affairs of the Senate. This 
material, followed by numerous conversations with many gentlemen of 



the Army of the United States who are warm champions of the claim- 
ant, aroused in me much of sympathy for him, and a strong hias in his 
favor. It was as though I had listened to the testimony of the defend- 
ant and heard the impassioned appeals of his counsel only. 

Evidently it was my duty not to stop here. The case of the state 
had surely been fully made out, else the conviction at the hands of the 
competent tribunal of 1862 would not have followed. I went, therefore, 
to its record, and have tried calmly, dispassionately, as a juror to sift 
all the evidence, or as a judge reviewing the testimony under the law, 
to reach my duty in the vote to be given upon this bill. I confess to 
a feeling of some disappointment when I say that my vote will be in 
the negative. I would gladly join the ranks of those who, from a de- 
sire to do justice as they see the course of justice, or from motives of 
mercy as they see it right to be merciful, will take the stain of over 
twenty years' durationfrom this appealing old man; but, under the law 
and facts as I see them, whether this proceeding be one of judicial re- 
view or the exercise of clemency, this bill should not pass. 

Not at length, Mr. President, but in such brief words as I may, I 
desire to give the reasons prompting me to this conclusion. 

The report of the majority of the committee asks for "a revision of 
the action of the court-martial." Adopting the language of the ad- 
visory board, it asks that the Congress shall " annul and set aside the 
findings and sentence of the court-martial in the case of Maj. Gen. 
Fitz-John Porter and restore him to the position of which that sentence 
deprived him. ' ' In other words, Congress is asked to act judicially and 
review the action of the highest tribunal having jurisdiction of the 
person and offense charged, A most dangerous precedent, truly, and 
one that, if followed, will surely bring greater evils in its train than 
even failure to give such vindication as the placing of Porter upon the 
retired-list of the Army, with the rank and pay of colonel, were he en- 
tirely innocent. 

"What was the tribunal by which this accused was tried and found 
guilty ? It has become ' ' good form, " "in these piping times of peace, ' ' 
to sneer somewhat at and belittle the court-martial. Will gentlemen 
inclined to do so recall the fact that, while no jury is called to pass 
upon the guilt of the party accused, it is the court where trial by one's 
actual peers is more nearly approached than in any other tribunal? 
The judges of the law and fact are taken from the profession, the call- 
ing, and, as near as may be, are of the same station — rank — as the 
party accused. Under the safeguards thrown about it by the law and 
military custom the action of the court must needs be calmly delibera- 
tive. 

The accused may be heard in his own behalf and a latitude is given 
in the production and examination of his witnesses almost unknown in 
the civil courts. The prosecuting attorney of the civil law, keen for 
conviction, alert for the State, merciless to the prisoner, aiming fre- 
quently by unfair means and tricks of the profession ' ' to make the worse 
appear the better cause, "gives place to the judge-advocate, bound under 
his oath to be the counsel of the accused person, protecting his rights 
and required to see to it that no injustice or unfairness is practiced upon 
him. In the taking of the testimony nothing is left to the uncertain 
memories of those who are to pass upon it. All is written that it may 
endure and pass to the reviewing authority. In cases such as this no less 
a person than the President of United States forms the court of last 



resort, the tribunal finally to decide, and in this particular case the 
experienced lawyer, the sound j urist, the great patriot, the compassion- 
ate man — Abraham Lincoln — reviewed the action of the court. 

The Congress of the United States created this judicial system under 
the Constitution. Says Benet in his treatise on military law: 

The Constitution of the United States empowers Congress " to raise and sup- 
port armies ; to provide and maintain a navy," and "to make rules for the gov- 
ernment and regulation of the land and naval forces." As an essential part of 
these powers it belongs exclusively to Congress to obtain or provide for courts- 
martial and define their jurisdiction ; to make their sentences final and conclu- 
sive or subject to a reviewing authority; to designate by whom they shall be 
convened and then confirmed or disapproved, and generally to makesuch stat- 
utory provisions concerning them as in their wisdom may be deemed proper 
and necessary. 

A court-martial is the proper and sole tribunal for the trial of military offi- 
cers. It is a lawful tribunal, existing by the same authority that any other court 
exists, and the law military is a branch of law as valid as "any other, and it dif- 
fers from the general law of the land in authority only in this — that it applies to 
officers and soldiers of the army but not to other members of the body-politic, 
and that it is limited to breaches of military duty. 

Says the Supreme Court of the United States in case of ex parte Reed 
(100 U. S. Rep., 13): 

The constitutionality of the acts of Congress touching Army and Navy courts- 
martial in this country, if there could ever have been a doubt about it, is no 
longer an open question in this court. It is the organism provided by law and 
clothed with the duty of administering justice in this class of cases. Its judg- 
ments when approved as required rest on the same base and are surrounded by 
the same considerations which give conclusiveness to the judgments of other 
legal tribunals, including as well the lowest as the highest under the circum- 
stances. 

Said Attorney-General Cushing in 1854, speaking of the reviewing 
power: 

The decisions of the President of the United States in cases of this sort are that 
of the ultimate judge provided by the Constitution and the laws. Like that of 
any other court in tne last resort of the law it is final as to the subject-matter. 

This then the character of the court that tried Jbltz- John Porter, and 
these the circumstances under which he was tried. A legally consti- 
tuted tribunal, composed of his peers, ' "' good men and true, ' ' having 
jurisdiction of his person and the offense charged, upon full trial, under 
all the safeguards of law, finds him guilty as charged. The highest 
reviewing power in the land examines the record and approves the find- 
ing. It is now proposed practically to usurp judicial powers by the 
legislative branch of the Government and ' ' revise and annul ' ' the action 
of this court. It is a proposition that may well startle the student of 
our form and frame of government. The dangers to flow from en- 
croachment by one of the co-ordinate branches of the Government upon 
the rights and privileges of another have been depicted by all our great 
writers upon the Constitution. The Supreme Court in numerous ad- 
judications has often sounded the alarm. From a case that happens to 
be at hand I quote familiar law, but not the less important because it 
is familiar. Says the Supreme Court in 13 Wallace, page 147, in the 
case of United States vs. Klein: 

It is of vital importance that these powers (the legislative and the judicial) 
should be kept distinct. The Constitution provides that the j udicial power shall 
be vested in one Supreme Court and such inferior courts as the Congress shall 
from time to time establish. The same instrument in the last clause of the same 
article provides that in all cases, other than those of original jurisdiction," the 
Supreme Court shall have appellate jurisdiction both as to law and fact, with 
such exceptions and under such regulations as the Congress shall make. It has 



already provided that the Supreme Court shall have jurisdiction of the judg- 
ments of the Court of Claims on appeal. Can it prescribe a rule in conformity 
with which the court must deny to itself the jurisdiction thus conferred, because 
and only because its decision, in accordance with settled law, must be adverse 
to the Government and favorable to the suitor? This question seems to us to 
answer itself. The rule prescribed is also liable to just exception as impairing 
the effect of a pardon and thus infringing the constitutional power of the Execu- 
tive. It is the intention of the Constitution that each of the great co-ordinate 
departments of the Government, the legislative, the executive, and the judi- 
cial, shall be in its sphere independent of the others. To the Executive alone is 
intrusted the power of pardon, and it is granted without limit. Pardon includes 
amnesty. It blots out the offense pardoned and removes all its penal conse- 
quences. It may be granted on condition. * * * Now, it is clear that the 
Legislature can not change the effect of a pardon any more than the Executive 
can change a law. Yet this is attempted by the provision under consideration. 
The court is required to receive special pardons as evidence of guilt and treat 
them as null and void. It is requh-ed to disregard pardons granted by procla- 
mation on condition, although the condition has been fulfilled, and deny them 
their legal effect. This certainly impairs the executive authority and directs 
the court to be instrumental to that end. 

I can not refrain from quoting upon this interesting subject from a 
distinguished military writer: 

This distribution of powers affords another strong and almost impassable bar- 
rier against danger from a standing army. If Congress controlled entirely, the 
military system would turn to despotism. If the Executive alone controlled, it 
would lead to oligarchy. The arrangement adopted harmonizes well with the 
theory of our institutions. It has ever been held of vital importance to separate 
as distinctly as possible the legislative from the executive power. 

Mr. President, if it should come to this Senate as an original propo- 
sition that, after conviction had b y a general court-martial and approval 
of its finding by the President of the United States, the Congress should, 
upon the record as made, or upon additional testimony, re-try the cause, 
or that, upon conviction of heinous crime by one of the circuit courts 
of the United States, Congress should take to itself the rights of au ap- 
pellate court to review the record, afford a new trial, and increase the 
sentence or let the convicted prisoner go, the advocates of this bill would 
stand aghast. It may be that Congress has the right to do indirectly 
that which it can not do directly. It may be that under its undeniable 
power to increase or decrease the Army of the United States it may re- 
quire the Executive to issue commissions to whomsoever it pleases, but 
for one I do not believe it. This bill trenches upon such dangerous 
ground that if I believed Fitz-John Porter all that the advisory board 
pronounce him, "a gallant soldier, unworthy of condemnation," I 
would not support it. It is not only a usurpation of judicial power, 
but of the pardoning and appointive power of the Executive. 

Mr. President, during the last twenty years I ha\e been engaged in 
the practice of law. As I look back along the path of my professional 
life I see many wrecks. Frequently where I have been of counsel for the 
defendant, owing to the ignorance of courts, the imbecility of jurors, 
the perjury of witnesses, and I fear sometimes the incapacity of defend- 
ant's attorney, conviction has resulted. The cases have gone to the 
courts of last resort under the law. The unfortunate victims of the ig- 
norance, the imbecility, the perjury, or the incapacity are confined 
within prison walls undergoing a : ' continuing sentence. ' ' If this prece- 
dent is to be established, how gladly would I bring their cases to this 
new tribunal. Here are none of the uncomfortable barriers that hedge 
in a court. Loud and persistent asseveration will do here instead of 
testimony. Ex parte affidavits will do better than living witnesses. 
Declamation may take the place of legal argument. The party lash may 



be able to accomplish more than the charge of a court. A member of 
this Congressional bench may play the roles of witness, counsel, advo- 
cate, juror, judge, all at one time. Yes, if I am to correct the blun- 
ders and repair the misfortunes of my professional career, let me come 
with the causes of my unfortunate clients to this new tribunal, that 
has the power under this proposed precedent not only to construe but 
to make the law, that is bound by no rules of evidence, no code of pro- 
cedure, but may simply " exercise its own sweet will." 

If this legislative body is to revise the action of the Porter court- 
martial and its sentence, what if it should find him guilty as charged, 
and the degree of his guilt greater than found by the court ? Shall its 
revision extend to the enlarging of the sentence as well? ¥nder the 
provisions of the articles of war, flowing from violation of the ninth or 
the fifty-second article, there may come the penalty of death. If we 
are to have new trial and new judgment, why not new sentence ? The 
reviewing executive evidently thought the punishment not commen- 
surate with the offense. How strong the testimony against this accused 
must have been when he with the kindest heart that ever throbbed in 
human breast could say, as Abraham Lincoln said, ' ' I have read every 
word in that record, and I tell you Fitz-John Porter is guilty and 
ought to be shot." Such was his language at the time as evidenced 
by that reliable gentleman, known to many here, the former law part- 
ner of Lincoln, Mr. Leonard Swett, of Chicago. He writes to the 
Chicago Tribune of date February 9, 1884, as follows: 

Chicago, February 9. 
As the question of Fitz-John Porter is now occupying public attention, a con- 
versation I once had with Mr. Lincoln upon the question seems pertinent. I 
was standing in his room in the White House, near the foot of the long table be- 
hind which he sat, he standing with me, and we talking upon some subject for- 
eign to the one he introduced when he called my attention to a large record 
[pile of manuscript] lying near us on the table. " That," said he, ' ' is the record 
in the Fitz-John Porter case." The trial had then just closed, and the record of the 
evidence taken in it was, as I understood, before him for action. " You know," 
said he, "if I know anything, it is what evidence tends to prove and when a 
thing is proven. I have read every word in that record, and I tell you Fitz-John 
Porter is guilty and ought to be shot.'''' He then added something the words of 
which I can not remember, but the substance was : " He was willing the poor 
soldiers should die, while he from sheer jealousy stood within hearing of their 
guns waiting for Pope to be whipped." I know nothing of Fitz-John Porter's 
ease, but have deemed it my duty, as I happened to hear this conversation, to 
make it public. 

Yours, truly, 

LEONARD SWETT. 

Were corroboration of the statement of Mr. Swett needed it could 
be found in the sworn testimony of Hon. Eobert T. Lincoln before the 
advisory board. He is testifying as to the statement of his father in 
regard to the Porter case, made shortly before his death ; and I read a 

short extract: 

I recollect the distinct remark that he made, but at what period in the con- 
versation I do not now recollect. He said that the case Avould have justified in 
his opinion a sentence of death. 

Mark it ! I do not say that Fitz-John Porter deserved death. I do 
not believe that he was either a traitor to his country or a coward. Of 
what offense I believe him guilty, under the proof and all the proof, 
whether taken before the court-martial or the advisory board, I will 
seek to show before I get through; but what I insist upon is this: if 
we are to revise this trial, if the matter is to be heard by this Congress 



exercising judicial powers, if the case is to be tried de novo, we should 
have the right riot only to reward, but to punish; not only to reinstate, 
hut to destroy; not only to confer rank and honor, but to take liberty 
and life itself, if such be even-handed justice after full trial. 

It would be niost interesting matter for investigation to determine 
upon what rules we are now to determine the guilt or innocence of this 
convicted one. Is it to be because of error of law by the court-martial ? 
If so, where is the assignment of error? Is it because the weight of 
testimony was in favor of the accused and not of the Government? "We 
are taught by the books that a verdict or finding of facts should not be 
disturbed if there is any evidence upon which to found it; that the trial 
body that has had the benefit of seeing the witnesses who testified is 
better qualified to weigh the testimony and pass upon the truth or 
falsity of statements made under oath. Is it because of newly dis- 
covered evidence? None has been brought before this Congress. If it 
appears anywhere is it not merely cumulative in its character, and do 
not the authorities agree that a new trial should not be awarded be- 
cause of newly-discovered evidence that is merely cumulative ? Will 
it be claimed that we should overturn the finding of the court-martial 
and the approval of the reviewing President because three distinguished 
gentlemen, sitting without legal authority, proceeding without refer- 
ence to law or the rules of evidence, investigating sixteen years after 
the event, have given it as their opinion that Porter should not have 
been convicted ? Appellate courts, reviewing boards do not usually act 
upon the unauthorized opinions of mere outsiders. And so we might 
go on in wearisome speculation as to what manner of thing this is that 
is presented here for judicial action by a legislative body. Thanks to 
the wisdom of the past, there is no precedent for the strange action asked 
of this Congress. I fear greatly the effect of the one likely to be here 
created. These considerations would prevent me from voting for this 
bill even did I believe Fitz-John Porter innocent of all that has been 
charged against him. 

But is he so ? In answering this question I do not propose to enter 
into any lengthy review of the testimony. He was charged with dis- 
obedience of orders, under the ninth article of war, and misbehavior 
before the enemy, under the fifty-second article of war. Let us glance 
very hurriedly at the proof in the record sustaining these charges, and 
take them in the order they are given. 

On the 27th day of August, 1862, General Porter being the com- 
mander of the Fifth Corps of the Army of Virginia, commanded by 
General John Pope, received about 9.30 o'clock in the evening an order 
commanding him to start with his corps at 1 o'clock that night on the 
march from Warren ton Junction, where he was then encamped, to Bris- 
toe Station, a distance of nine miles. It is admitted that he failed to 
obey the order, and claimed as matter of defense that in the discretion 
that rested in him he was not only excusable but justifiable in his dis- 
obedience. In the effort on the part of interested friends to exculpate 
this man from the charges made against him a new and most danger- 
ous doctrine is attempted to be introduced in military law, namely, 
that the inferior may deliberate upon an order received from his su- 
perior, and disobey, if in his opinion such disobedience is the part of 
better wisdom or superior judgment. A monstrous doctrine, subver- 
sive of discipline, and one which, if carried into practice, will be fraught 
with dread disaster, if this country should again engage in war. I sub- 



LO 

mit that such is not the law as written by the best military writers ; 
it has never been the practice where there was competent, efficient 
chieftainship. 

Obedience, strict, prompt, unquestioning, active, whole-souled, pains- 
taking, willing, cheerful obedience is the highest duty of the soldier. 
Let us get away from the glamour thrown around this case by prom- 
inent advocates anxious for the restoration of Fitz-John Porter, and 
see what the best writers say upon this subject. Says Hough, in his. 
Precedents in Military Law: 

Disobedience of positive orders is highly criminal, and niay arise either out of 
the refusal of the officer or soldier to act as ordered, or refusing to march whither 
ordered, or disobeying orders given on service relative to an attack upon the 
enemy. Whether the orders of the superior enjoin an active or a passive con- 
duct, the officer or soldier subject to them is equally obliged to obey; otherwise 
every military operation or enterprise would be made to depend not on the 
prudence or wisdom of the commander, but on the will or caprice of the soldiery 
either for the success or defeat of its object. Prompt, ready, unhesitating obedi- 
ence in officers and soldiers to their superiors is so necessary to the safety of the 
military state and to the success of every military operation or arrangement 
that it would be highly injurious to the interests of the army were disobedience 
in any case to be left unpunished. 

And again, on page 103 of his much- valued work, he says: 
Obedience to command is the chief military virtue, in relation to which all 
others are secondary and subordinate, and disobedience is reckoned among the 
principal military crimes, and is justly liable to the most exemplary punish- 
ment. The object of assembling any force might be defeated if orders were not 
strictly obeyed even to the very letter. The operation of an army in the field, 
in which combination and concentration of its forces are so often required, 
might be frustrated if there should be any disobedience on the part of any offi- 
cer commanding a force destined to join and act with such army. 

Let me depart from the quotation for a moment to call attention to 
the statement of the Senator from New Jersey [Mr. Sewell], made 
yesterday, that his indictment against General John Pope was that he 
showed his utter lack of ability to concentrate his army in the presence 
of the enemy. He did lack that ability, but why ? This record answers. 
His orders to his subalterns that would lead, if obeyed, to concentration, 
were, so far as Fitz-John Porter was concerned, persistently disobeyed. 

Here there must be no discretion allowed; one supreme head directs the 
whole of the motions of the force and of its component parts. So general is the 
rule that the orders of the superior shall be imperative on the military inferior 
that it will not admit of exception unless when the orders or the things com- 
manded to be done are directly contrary to law. 

Now let us turn to De Hart's Military Law, and on page 165 we read: 
Hesitancy in the execution of a military order is clearly under most circum- 
stances a serious offense and would subject one to severe penalties; but actual 
disobedience is a crime which the law has stigmatized as of the highest degree 
and against which denounced the extreme punishment of death, and accord- 
ingly an offense of this nature, from the great danger which might result from 
it, would be very nicely scrutinized by courts-martial ere a justification would 
be admitted upon the ground that there was no lawful authority for the com 
mand given. In every case in which an order is not clearly in derogation o«. 
some right or obligation created by law, the commands of a superior must meet 
with unhesitating and instant obedience. 

So then, under the authorities I have read, there was no discretion 
resting in the commander of the Fifth Army Corps. The command to 
march was a lawful one, issuing from an unquestioned superior — the 
chief of the army to which he was attached. It gave the reason for 
the haste desired. It said: 

Start at 1 o'clock and come forward with your whole corps so as to be here 
by daylight to-morrow morning. Hooker has had a very severe action with the 



11 

enemy, with a loss of about three hundred killed and wounded. The enemy 
has been driven back, but is retiring- along: the railroad. We must drive him 
from Manassas. Send word to Morell to push forward immediately. Send word 
to Banks to hurry forward. It is necessary on all accounts that you should be 
here by daylight. 

Here was an order most explicit, rilled with reasons for prompt obe- 
dience, and, as I think, must strike every one as filled with something 
else. This reiteration and urging to prompt obedience is convincing 
that the chief was fearful that it would not be promptly obeyed. The 
same urging to obey is found in every order issued by Pope to Porter 
during those dark days. It looks as though the chief felt some distrust 
of the fealty of his follower, and I submit that the truth of history 
shows that distrust to have had abundant foundation. Porter did not 
march at 1 o'clock. He did not arrive at Bristoe at daylight. He ar- 
rived about 10 o'clock. But it is claimed that he could not. The 
statement is not borne out by the proof. It is said the night was dark. 
There are those upon this floor who have marched infantry troops when 
the nights were as ; ' dark as a pocket. ' ' 

During the Atlanta campaign men moved for miles through the dense 
Georgia woods, without roads, when the course of the column could only 
be tracked by the phosphorus of unburned matches rubbed upon the 
palm of the uplifted hand. It is shown that many commands, confed- 
erate and Federal, did march that night. There is the positive testi- 
mony of many witnesses that it was starlight, not raining, not cloudy, 
and troops marched without difficulty. The men were tired, it is said. 
The head of his column went into camp at Warrenton at 10 o'clock in 
the morning and his command was all up before dark. It is absurd to 
say that his head of column could not have started at 1 o'clock. It 
is claimed that the road was bad. Numerous witnesses say on oath that 
it was hard and dry. But it is suggested that it was blocked with 
wagons. The quartermaster in charge of the transportation swears that 
at 1 o'clock and from that time until daylight there were no wagons 
upon the road ; that he parked them by the side of the road in the 
fore part of the night and moved them out again about daylight. At 
any rate, if Porter had desired to obey the order and reach Bristoe by 
daylight he could have taken his choice of roads, for the testimony is 
that there were two distinct roads, one on each side of the railroad, and 
on either one of the three roads troops could readily march. 

But it is claimed by the Senator from New Jersey that Porter was 
not needed, and such is the suggestion found in the report of the ad- 
visory board ; that there was no necessity for his being there by daylight. 
I do not propose to reply to that argument, except to make this sugges- 
tion, that it would remind me somewhat of a defense that might be in- 
terposed by a burglar who, when brought to trial for a burglary, should 
say: "True, I broke into your house in the night season, but there was 
nothing there for me to steal. ' ' 

No ! He did not care to obey. He was indifferent to the wishes of 
his superior. He had no respect for his chief, and neglect of his desires, 
the frustration of his plans, was in accord with the real wishes of Fitz- 
John Porter's heart. The criticising, captious, disgruntled letters to 
Burnside written on those days show it. Even the complimentary and 
easily satisfied advisory board are compelled to recognize it when they 
say in their report: " It is our duty to say that the indiscreet and un- 
kind terms in which General Porter expressed his distrust of the capacity 
of his superior commander can not be defended." 



12 

Porter must have been familiar with the sixth article of war: "Any 
officer who shall behave with disrespect toward his commanding officer 
shall be punished. ' ' I take it he had read the language of that cel- 
ebrated writer, O'Brien, in his work on American military law: " There 
is no doubt that contempt or disrespect to any superior officer is pun- 
ishable. Many cases in point might be cited. It is as a general rule 
not deemed a j ustification that the disrespectful expressions are truly 
merited." He must have been familiar with the law; yet, feeling 
distrust of the capacity of his chief, holding him in contempt, express- 
ing his feelings to General Burnside, and undoubtedly to others, he 
was guilty of that violation of his duty that even the advisory board 
is compelled to say " can not be defended." It was so notorious that 
even General McClellan had to beg of him to be loyal to his commander. 

Yes, here is the key-note of all this unfortunate business. It explains 
the constant delay, the ever-recurring disobedience, the failure to fight 
upon the 29th. He held Pope in contempt. He was jealous of his 
leadership. He dreaded a victory that would advance him further. He 
did not desire defeat to our arms, but he was not anxious to see Pope 
win victory. Ah ! the curse of this jealousy among the leaders of the 
armies of the East. McClellan, Hooker, Burnside, Meade, Pope — all 
fell as its victims. I thank God that the generals of the armies of the 
West knew not the base feeling. Generous rivalry there was between 
the divisions and corps composing the Armies of the Tennessee and 
the Cumberland, but among its great leaders, McPherson, Logan, Sher- 
idan, Thomas, Grant, Sherman, there were no heart-burnings from jeal- 
ousy, hatred, and ill-will. [Applause in the galleries.] 

It is not my purpose to go into the testimony bearing upon the trans- 
action of the 29th of August. Suffice it to say that on that day a bat- 
tle was fought that raged from about 9 o'clock in the morning until 9 
at night. In that battle at different times and with varying intervals 
every part of the army commanded by General John Pope was engaged, 
except the Fifth Corps commanded by General Porter. He was within 
hearing distance of the booming of the artillery and the rattle of mus- 
ketry. He knew ' ' the fight was on. ' ' He did not participate and his 
whole action during that day evidenced a determination not to join 
in the battle with the troops under his command. Had he joined the 
fighting line and given to the men of his gallant corps the opportunity 
to help their fellows the great disaster of the next day — the ill-fated 
30th of August, when he did fight and with the rest of the Army of Vir- 
ginia was worsted — might have been averted. 

I believe from careful examination of the testimony that actuated 
by that distrust of and contempt for his commanding officer of which 
I have heretofore spoken he deliberately and willfully disobeyed the 
order of the morning of August 29 urging him to march toward Gaines- 
ville. I believe it to be established that the order of 4. 30 p. m. order- 
ing him "to push forward into action at once on the enemy's flank, 
and, if possible, on his rear," although much delayed in its delivery, 
yet reached Porter in time to have enabled him by vigorous effort to 
strike a blow with telling effect. But instead of giving willing, prompt, 
and unhesitating obedience he ordered two regiments to feel of the 
enemy, and before they had opportunity so to do caused their return 
to the resting, passive, unaiding line of his corps. And so it was dur- 
ing all those closing days of August, 1862. Neither entreaty nor order, 
the sight of battle in which his comrades were being worsted, nor the 



13 

sound of guns, could prompt him to help with the strong arms of his 
ten thousand gallant men the commander whom he hated. He would 
help to weave no laurels for Pope's inferior brow. No. Pope's star 
must go down in disgrace and defeat. Read the significant dispatch to 
Burnside sent on the 28th, in which this envious subaltern says: ' ' My 
lucky star is always up about my birthday the 31st, and I hope Mc's 
is up also." " Ma," whose star is to be in the ascendant, is General 
McClellan. This great soldier is shocked at Porter's want of loyalty 
to his chief. 

Look at this significant letter, written on September 1 : 

I ask you for rny sake, that of the country, and of the old Army of the Poto- 
mac that you and all friends will lend the fullest and most cordial co-operation 
to General Pope in all the operations now going on. The distresses of our 
country, the honor of our arms are at stake, and all depends now upon the cheer- 
ful co-operation of all in the field. This week is the crisis of our fate. Say the 
same thing to all my friends in the Army of the Potomac, and that the last re- 
quest I have to make of them is that for their country's sake they will extend 
to General Pope the same support they ever have to me. 

* * * . * * * * 

GEORGE B. McCLELLAN, 

Major-General. 
To Major-General Porter. 

Imagine any one writing a letter to Sherman or Sheridan or Thomas 
or McPherson to be true to Grant. 

But a few months before the day when Porter rested idly in the shade 
while the loud-mouthed cannon gave to him unheeded invitation, a far 
different scene was enacted in the West, and I would like to hold it up 
in contrast. The capture of Fort Donelson had opened clear pathway 
by water and by land to our forces, and Grant, with his army, was near 
Pittsburg Landing. The glorious victory of Thomas at Mill Springs, 
the fall of Bowling Green, and the surrender of Nashville had cleared 
Middle Tennessee for the marching columns of Buell. Along the beaten 
roads during the pleasant spring days they moved. On April 6, with 
the impetuous Nelson and the gallant Crittenden in the lead, the head 
of Buell's army approached Savannah on the Tennessee River. The day 
was nearing its close and the tired men were longing for canij> and rest. 
Suddenly the faint sound of a distant gun. Another and another in 
quick succession. The straggling lines of troops instinctively gathered 
in more compact form. Without command to that effect the marching 
step quickened. The sullen boom of the artillery was more distinctly 
heard as the distance lessened. The fact was apparent. Our brothers 
of the Army of the Tennessee were engaged. The battle was on, but 
miles away and across the deep and rapid river. A long and wearisome 
march had been made that day by these divisions. Tired and hungry 
and likely so to remain, for there were no cooked rations in the haver- 
sacks, and the wagons miles to the rear and not likely to come up. The 
leaders of these commands need no orders to hasten on and let the rest 
be taken after the battle is lost or won. The ' ' sound of the guns ' ' is 
all the order needed. The ' ' old sea-dog ' ' Nelson, taking to water natu- 
rally, I suppose, leaves the main road and leads his division over a shorter 
one through a swamp. Crittenden hurries on to Savannah . The waiting 
transports are loaded to the guards. The river is crossed, and Grant's 
gallant troops, disheartened by the long day's fight at fearful odds, 
welcome with glad shouts and tears of joy the leaders and men to whom 
the din of arms is an invitation and ''the sound of the guns " an order. 
The rich reward is that on the next day the battle of Shiloh is con- 



14 

tinued and won, victory is wrested from the jaws of defeat, and the rebel 
retreat to the south goes on. 

The honorable Senator from New Jersey who addressed the Senate on 
yesterday gave us several instances where subaltern officers had dis- 
obeyed orders and had not been punished upon trial had. Did it strike 
him as he read the account that all the instances of violation of orders 
mentioned by him were those where the alleged military offense was 
fighting without orders ? Unfortunately Fitz- John Porter was not so 
charged. Were it so he would have no need to be a suppliant asking 
Congress to ' ' revise and annul ' ' the sentence of a court-martial. 

Mr. President, I oppose this bill because of the law and the facts; be- 
cause of the dangerous precedent and the bad example; because it is 
destructive of discipline and injurious to the well-doing of our Army; 
because I believe it to be eternally right so to do. T Applause in the 
galleries. ] 



